Periodic updates on developments in disability law and related fields.

Wednesday, July 18, 2012

"Segways at Disneyland? Could Happen."

So begins a published opinion written by Judge Alex Kozinski and issued today by the United States Court of Appeals for the Ninth Circuit in the case of Baughman v. Walt Disney World Company. Ms. Baughman has muscular dystrophy and uses a Segway for mobility. But Disney does not allow Segways at Disneyland and refused to let her bring hers in. She sued under Title III of the ADA. The United States District Court for the Central District of California granted summary judgment, because Ms. Baughman could have used a motorized wheelchair while she was visiting Disneyland.

In today's decision, the Ninth Circuit reversed. It sternly rejected the argument proffered by Disney and accepted by the district court:

Read as Disney suggests, the ADA would require very few accommodations indeed. After all, a paraplegic can enter a courthouse by dragging himself up the front steps, see Tennessee v. Lane, 541 U.S. 509, 513–14 (2004), so lifts and ramps would not be “necessary” under Disney’s reading of the term. And no facility would be required to provide wheelchair-accessible doors or bathrooms, because disabled individuals could be carried in litters or on the backs of their friends. That’s not the world we live in, and we are disappointed to see such a retrograde position taken by a company whose reputation is built on service to the public.

* * *

Facilities are not required to make any and all possible accommodations that would provide full and equal access to disabled patrons; they need only make accommodations that are reasonable. In deciding what’s reasonable, facilities may consider the costs of such accommodations, disruption of their business and safety. But they must also take into account evolving technology that might make it cheaper and easier to ameliorate the plight of the disabled. In the past, it might have been enough for a theme park to permit only non-powered wheelchairs. As technology made motorized wheelchairs and scooters cheaper, safer and more reliable, our expectations of what is reasonable changed—as Disney recognizes. But technological advances didn’t end with the powered wheelchair. As new devices become available, public accommodations must consider using or adapting them to help disabled guests have an experience more akin to that of non-disabled guests.

The modification Baughman seeks is entirely consistent with our caselaw. She claims that she has difficulty standing up from a seated position, so the Segway—which allows her to remain standing—makes it easier for her to visit Disneyland’s many attractions, concessions and facilities. She also claims that using a Segway allows her to be at eye-level with other guests and staff, rather than having everyone look down at her. Disney doesn’t dispute Baughman’s claim thatusing a motorized wheelchair or scooter would require her to stand and sit many times during her visit, or that doing so would be painful for her. Nor does Disney dispute that Baughman would feel more comfortable and dignified using a Segway. Disney simply takes the position that, even if Baughman’s access is made “uncomfortable or difficult” by its policies, any discomfort or difficulty she may suffer is too darn bad. Supplemental Br. of Appellee 5. Disney is obviously mistaken. If it can make Baughman’s experience less onerous and more akin to that enjoyed by its able-bodied patrons, it must take reasonable steps to do so. See Regal Cinemas, Inc., 339 F.3d at 1133.

The court also found support for its conclusion in the Attorney General's 2010 ADA regulations, which require places of public accommodations to allow patrons with disabilities to use Segways as mobility devices in "the vast majority of circumstances." The court explicitly deferred to and relied on that regulation. Consistent with that regulation, the court noted that Disney could exclude Segways if it could make an appropriate showing that they present a safety risk:

We do not hold that Disney must permit Segways at its theme parks. It might be able to exclude them if it can prove that Segways can’t be operated safely in its parks. Section 36.311(b) lists several factors to consider in determining whether a device can be used in a particular facility, including the size, weight and speed of the device; the volume of pedestrian traffic in the facility; and whether legitimate safety requirements can be established to ensure safe operation of the device. § 36.311(b)(2). Disney might, for example, permissibly require Segways to travel only as fast as motorized wheelchairs. But any safety requirements Disney imposes “must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” 28 C.F.R. § 36.301(b).

All told, a big win for the plaintiffs and the Department of Justice (which participated as amicus, and I should note as a matter of full disclosure that I was involved in the case as it proceeded through the Department and of course was supervising the relevant part of DOJ when it issued the regs to which the court deferred). And quite an embarrassment, I would think, for Disney and its counsel.